In this modern family, exes battle for custody of frozen embryos

May 8, 2015

TV-star Sofia Vergara’s ex-fiancé is waging a public campaign for her to let him have and raise the couple’s two frozen embryos. The battle reveals the complexities of frozen embryo “custody” in cases where the parents’ relationship dissolves.

The fiancé, businessman Nick Loeb, wrote an editorial in The New York Times last week explaining why he is suing Vergara, a star on the TV show Modern Family, for their embryos, which were made through in vitro fertilization (IVF). He called the two female embryos “our girls,” explaining that he doesn’t want to “let the two lives I have already created be destroyed or sit in a freezer until the end of time.”

Vergara and Loeb split in May 2014. According to Loeb, the couple agreed to try to have children in 2013. Vergara insisted they use IVF and a surrogate. The first implanted embryo did not take; the second miscarried. A year later, they did another round of IVF that resulted in two more embryos, but called off their engagement soon after.

The couple signed a contract before the procedure that any embryos created could only be brought to term if they both agreed. However Loeb is pushing a technicality: “The form did not specify—as California law requires—what would happen if we separated. I am asking to have it voided,” he wrote in the editorial.

Vergara said she is doing the right thing by denying Loeb’s request. “A kid needs parents,” she told radio host Howard Stern in an interview Monday. “I wouldn’t imagine anyone saying it’s sane to bring in the world kids that have already have everything set up wrong for them. It would be so selfish.”

She argues that both times they went through IVF, he signed legal papers specifying that they would both have to agree to bring the embryos to term. “If it was so serious for him, this issues, which I totally respect, then he should have taken it more serious at the time,” she says. Vergara says she is not worried about the possibility a judge would rule in Loeb’s favor.

Lawsuits over frozen embryos after couples split raise a question of legal definition: Are the embryos life or property? Judges have ruled only rarely in favor of one parent obtaining custody of embryos against the other’s will. Loeb said his lawyers found 10 cases with a similar suit, and only two resulted in rulings where one parent was able to bring frozen, fertilized eggs to term. In both cases, one in Illinois and one in Pennsylvania, the women had undergone chemotherapy, and the embryos were their only chance of having children.

But Loeb is still going to fight for the right to raise the embryos, calling the case a situation of a “parent’s right to protect the life of his or her unborn child.” He said he is shaped by two prior experiences—an abortion by a girlfriend in his 20s that was “entirely out of my hands,” and a previous marriage where he and his ex-wife struggled with infertility.

Vergara said she plans to keep the embryos “frozen indefinitely.” Loeb called that “tantamount to killing them.”